Are we not entitled as American citizens to expect U.S. based social web empires like Twitter, Instagram, Facebook, YouTube, etc., to let us determine for ourselves what is factual and what is not as we consume content over the web? Conversely, are American content providers and private citizens on social media not entitled to free speech and free press on these platforms?

These two questions are tightly coupled so I've dared to ask them together in one post.

I can certainly agree that allowing video on YouTube displaying a man's execution is very distasteful and inappropriate for public audiences, and that dangerous bomb-making instructions ought not be generally disseminated over public venues like Wikipedia.

But simple differences of opinion in regards to government and public policy are frequently being censored lately right in front of our eyes over these channels. It could be a potential conspiracy theory for all I care! Is it constitutional for Silicon Valley's own Facebook to censor a post and chalk it up to "independent fact-checking"? What I see happening here instead is that this social channel is actively crushing dissent.

Here's a sample of censored video journalism someone posted recently on Facebook (whose content I don't wish to promote, so I've blurred it). Just as I came to watch it, the video stream was shut off on account that it was supposedly, "Partly False". Today, you try to visit the link and it won't even appear. There was nothing violent in it, and nothing explicitly sexual. It was simply an interview with a controversial figure about a controversial subject. Yet this was censored: enter image description here

Is all this social media censorship a violation of our constitutional rights or not?


The trivial answer is "none". As other answers have noted, corporate social media is not the US Government. The US Government usually has no statutory power within corporate media to either prevent corporate censorship or compel corporate editing.

However, this easily answered question implies a thornier one: if ever a handful of large and powerful multinational corporations should hold a de facto virtual media monopoly or actual media oligopoly over the means of public communication, the results could at worst be all too similar to government censorship, but without any of the accountability typical of a democratic society.

That is, if we imagine for the sake of argument that the USA appointed an "Official Media Censor" who abused their office, aggrieved citizens might "vote the bums out" -- with corporations this option doesn't exist.

On the flip side, corporations need money, and media corporations need eyeballs, so citizen consumers in a capitalistic society at least have the option of looking elsewhere, and spending their dollars on whatever smaller forms of media exist that are more to their liking. Unlike with government censorship, buying an unpopular dissident magazine (usually) won't get the buyer thrown in jail.

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You have the right to look for other news sources.

"Free speech" is about the government restrictions or compulsions, and the First Amendment was originally about Congress alone. (The Fourteenth Amendment has been interpreted as extending those First Amendment protections to cover actions by state and local governments.)

It's important to remember that "freedom of the press" includes the right to not publish. Compelling someone to say something they disagree with is just as much a First Amendment violation as forbidding them to speak is.

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    Or even to start your own social media platform. – jamesqf May 14 at 5:32

Are we not entitled as American citizens to expect U.S. based social web empires like Twitter, Instagram, Facebook, YouTube, etc., to let us determine for ourselves what is factual and what is not as we consume content over the web?

You're free to expect it, but you're going to be disappointed. That's because:

Conversely, are American content providers and private citizens on social media not entitled to free speech and free press on these platforms?

Absolutely not. The First Amendment restricts government action, not private action. For instance, in Manhattan Community Access Corp v. Halleck, the Supreme Court held that "The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors." The Court went on to say that

Under this Court’s cases, a private entity can qualify as a state actor in a few limited circumstances — including, for example, (i) when the private entity performs a traditional, exclusive public function, see, e.g., Jackson, 419 U. S., at 352–354; (ii) when the government compels the private entity to take a particular action, see, e.g., Blum v. Yaretsky, 457 U. S. 991, 1004–1005 (1982); or (iii) when the government acts jointly with the private entity, see, e.g., Lugar v. Edmondson Oil Co., 457 U. S. 922, 941–942 (1982).

Manhattan Community Access involved a private corporation that was designated by New York City to administer public access channels as part of a franchise agreement between the city and Time Warner Cable. Public access channels were required by NY state law, and the state law heavily regulated how those channels must be operated. Local governments had a role in this: the cable operator would normally operate the public access channel, but the local government could instead decide to run it or could designate some private entity to run it.

Despite all this government involvement, the Court held that MCAC was not a state actor when deciding what to show. Running a forum for people to speak is not traditionally an exclusive state function. The dispute turned on whether the public access channel was itself city property that MCAC was running on behalf of the city (running a city-owned public forum on behalf of the city is considered state action), and even with such a close relationship the Supreme Court held that it was not.

Turning to private social media, it has far less connection to the government than MCAC did. MCAC was officially designated by the city to operate a channel that state law explicitly designated as a public forum. Facebook and Twitter are not. Their actions are based on their own interests; they aren't administering their sites on behalf of the government. They are not state actors, and the First Amendment doesn't apply to them.

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As other answers pointed out, the US constitutional law clearly applies to government entities, not private sector corporations.

One might ask interesting questions about those companies trying to "have their cake and eat it, too" by claiming both the right to sort, alter, or suppress user content on their own sites, and a near-total lack of responsibility for the content generated by their users.

  • A newspaper is free to write what they want, subject to libel laws etc. They're also responsible for what they publish.
  • A telephone company is not held responsible for the content of speech over their lines. They do not control the content, either.
  • A social media company claims the immunity of a telephone company with the editorial control of a newspaper.

But the situation right now is both legal and constitutional, because the Constitution was written long before the internet and laws have exceptions which treat social media platforms like telecommunication providers. Changing the US Constitution is a rather impractical proposition.

One might also ask about problems of monopolies/oligopolies in the social media market and the need to apply anti-trust laws, but that's another can of worms.

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    “possibly because most laws and especially the Constitution were written long before the internet.” The law explicitly giving them immunity even if they curate their content was written in the 1990s and is exclusively about the Internet. Off the Internet, there’s a link between curation and liability. Online, Congress explicitly broke that link and said “you can try to keep your site from being 4chan without being liable for everything anybody posts.” – cpast May 14 at 4:43

Antitrust laws

While theoretically left-leaning companies like Facebook, Google, Twitter etc ... have every right to promote whatever opinion they want (and censor those that they do not want), the situation changes when they create de facto monopoly on the market.

The US has a set of antitrust laws; it will be relatively easy to prove that for example Facebook, has a monopoly in a certain segment of social networks, especially since they acquired Instagram. The same could be said about Twitter, (micro-blogging), or Google, (internet searching and cell phone OS). Now while it could be argued that each of these companies achieved a so called innocent monopoly, almost accidentally because they offered unique services to their customers, the moment they engaged in censorship that monopoly is not so innocent. For example, if I want to publish a book with different viewpoint then Google, and Google blocks searches about my book or gives only negative reviews, then Google as a publisher would be using their monopoly power to kill competition. The same goes for Twitter and Facebook. The situation could be actually even worse, for example: Google banned Gab (social network), supposedly because that social network didn't censor enough so called "hate speech". Rumors float that this was done at request of Facebook and Twitter - as Gab does not remove right-wing and libertarian points of view it could be powerful alternative for large parts of population.

Therefore, what could be done? A well-prepared class action suit against all the mentioned companies could force them to either go neutral or be broken up. In the first case, the aforementioned companies would refrain from willingly promoting or demoting any political view. In the latter case, they would have to be split up, with judicial over-watch for certain time.

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  • "For example" is used three times in one paragraph. – agc May 15 at 6:26

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